MEDIATION OPTIONS IN KNOXVILLE
Mediation is a non-adversarial process for resolving disputes and can be an alternative to trial. Mediation is particularly useful if the parties to the dispute want to continue a relationship, whether business or personal, and, especially, if they have children to co-parent. In mediation, a neutral person (the mediator) talks with both parties, but the primary responsibility for resolution of a dispute rests with the parties. Mediation has been defined as a private and consensual process in which an impartial or neutral person (the mediator), works with disputing parties to help them explore settlement, reconciliation of disputed matters, and understanding between the disputing parties. A mediator assists the parties in identifying issues, reducing obstacles to communication and maximizing the exploration of alternatives. With identification of common interests or concerns, the parties can begin to find areas in which they can find a common solution. Agreement on small issues often leads to agreement on larger issues. Sometimes parties will attend mediation to resolve some of their issues, then litigate the remaining issues. The key to the mediation process is that the parties are communicating and making their own decisions -- there is no judge or other third party to make the decisions. The mediator is present to help the parties communicate their ideas, offer possible resolution options, and help the parties reach an agreement that allows them to move forward.
Almost any sort of dispute or lawsuit can be mediated and a court can order the parties to use mediation. Commonly mediated disputes include divorce issues such as alimony, child custody, visitation, support and property division, landlord/tenant issues, neighborhood disputes, personal injury cases, business disputes, and contract disputes. In recent years, major corporations have begun to use mediation as an alternative dispute resolution process. Further, Tennessee law requires divorce and custody matters to be mediated at least one time prior to going to trial.
The mediation process itself is structured so that those unfamiliar with the process will quickly be made comfortable. An explanation of the process is given, and guidelines are set forth. One of the guidelines is that each party must give the other time to speak without interruption. This guideline ensures that both parties will have an equal opportunity to voice their thoughts about the dispute. The parties are told that the process is confidential and that full disclosure is necessary for the parties to reach an agreement. All notes taken during the mediation are confidential and cannot be used at trial later; nor can any offers of compromise be used in court if the case goes to trial. If the parties agree to the guidelines, an agreement to mediate is signed. In most mediations, particularly the divorce cases, the parties are in separate rooms so that the mediator may listen to, and speak with, each party individually.
Each party is asked what he/she would like to see resolved during the process. Both parties then have the opportunity to tell their side of the story, and their feelings about the situation. The parties then begin to work through those issues they want to resolve. While the parties are negotiating, the mediator may take notes, and reframe statements to ensure that both parties understand each statement as it is made. The mediator's goal is to help the parties realize their mutual interests and assist them in coming to a satisfactory resolution. Importantly, mediation enables the parties to propose solutions that are not available from a court and that are tailored to the parties’ individual circumstances. If it becomes apparent that the process is not working, it can be terminated by the mediator or by the parties at any time. The parties are then free to return to court or to try another means of dispute resolution.
Mediation is less costly than going through the court process, and disputes are often resolved more quickly. Although a mediator assists parties through the process, it is advised that individual attorneys be retained by each party in order to advise their respective party/client with the legal issues surrounding the resolution proposals and to file the completed agreement with the court, if necessary. Mediators cannot give legal advice and in many cases, during the course of the process, it is necessary to request legal advice. It may become necessary for other professionals, such as financial planners, to become involved. When this situation arises, the mediator will request that the parties consult with their experts and return with the appropriate documentation so that full disclosure can be made. Disclosure of all information is necessary to develop a fair and lasting agreement.
There are several options for a person seeking a mediator in Knox County. The Clerks of all the state courts and federal courts have lists of mediators who have been approved to mediate lawsuits in those courts. The Alternative Dispute Resolution Commission has a list of mediators that have been approved under Tennessee Supreme Court Rule 31, and the Commission’s telephone number is 615-741-2687. Another option is the Community Mediation Center which offers mediation for divorce, post-divorce, custody and juvenile issues. In addition, the Center offers mediation for civil and pre-approved misdemeanor cases in General Sessions Court. With the exception of divorce, the mediation services provided by the Center are generally free of charge. The divorce service is available on a sliding fee basis determined by household income and number of persons in the household. For more information about the Community Mediation Service, please contact their office at 594-1879. In addition, several private mediation firms serve the metropolitan Knoxville area. Those can be reviewed by visiting www.knoxbar.org and selecting “Find a Mediator” from the home page, or by searching the internet.
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